Citation Nr: 0302811
Decision Date: 02/13/03 Archive Date: 02/24/03
DOCKET NO. 02-03 295A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to secondary service connection for hypertension.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Counsel
INTRODUCTION
The veteran (appellant) served on active duty from October
1963 to October 1966. This matter comes to the Board of
Veterans' Appeals (Board) on appeal from a rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Chicago, Illinois.
FINDINGS OF FACT
1. The RO has notified the veteran of the evidence needed to
substantiate his claim, and has obtained and fully developed
all evidence necessary for the equitable disposition of the
claim.
2. The veteran is service connected for PTSD.
3. Hypertension was not manifested during service or to a
compensable degree within one year of separation from
service.
4. Competent medical evidence has not been presented showing
a nexus, or link, between hypertension and either the
veteran's period of service or his service-connected PTSD.
CONCLUSION OF LAW
The veteran's hypertension was not incurred in active
service, nor is it proximately due to, or the result of, his
service-connected PTSD. 38 U.S.C.A. 1101, 1110, 1112, 1113,
1137, 5103A, 5107(b) (West 1991 & Supp. 2002) 38 C.F.R.
3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2002);
Allen v. Brown, 7 Vet. App. 439 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§
3.303, 3.304 (2002). Service connection may also be granted
for disability, which is proximately due to, or the result of
a service-connected disease or injury. 38 C.F.R. § 3.310(a)
(2002). In addition, service connection may be granted for
any disease diagnosed after discharge, when all of the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. §
3.303(d) (2002).
Where a veteran has served for 90 days or more during a
period of war, or during peacetime service after December 31,
1946 and cardiovascular disease, to include hypertension,
becomes manifest to a degree of 10 percent within one year
from the date of termination of such service, such disease
shall be presumed to have been incurred in service, even
though there is no evidence of such disease during the period
of service. This presumption is rebuttable by affirmative
evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113
(West 1991 & Supp. 2002); 38 C.F.R. §§ 3.307, 3.309 (2002).
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law redefines the obligations of the Department
of Veterans Affairs (VA) with respect to notice and the duty
to assist. This change in the law is applicable to all
claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
38 U.S.C.A. § 5103A (West Supp. 2002); See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
VA issued regulations to implement the VCAA in August 2001.
66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The
amendments were effective November 9, 2000, except for the
amendment to 38 C.F.R. § 3.156(b) which is effective August
29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a),
the second sentence of 38 C.F.R. § 3.159(c)(4)(iii), VA
stated that "the provisions of this rule merely implement
the VCAA and do not provide any rights other than those
provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly,
in general where the record demonstrates that the statutory
mandates have been satisfied, the regulatory provisions
likewise are satisfied.
Under the new legislation, the VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate the claimant's claim for a benefit under a
law administered by the Secretary, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. 38 U.S.C.A. § 5103A (West Supp.
2002).
Once the evidence has been assembled, it is the Board's
responsibility to evaluate the evidence. 38 U.S.C.A.
§ 7104(a). The Secretary shall consider all information and
lay and medical evidence of record in a case before the
Secretary with respect to benefits under laws administered by
the Secretary. When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107
(West Supp. 2002).
The Board has considered the effect of this new legislation
as it pertains to the appellant's claim and finds that no
further development is necessary as to this issue. Bernard
v. Brown, 4 Vet. App. 384 (1993). Specifically, the Board
notes that the veteran has been informed via letters, a
statement of the case and subsequent supplemental statements
of the case of the evidence necessary to substantiate his
claim. The RO has secured medical records and the veteran
has been examined in conjunction with the claim. In
addition, in September 2001, the RO contacted the veteran and
notified him of the evidence needed to establish entitlement
to the benefit sought, and what the RO would obtain, as well
as what evidence was needed from the veteran and what he
could do to help with his claim. No further assistance in
this regard appears to be warranted. Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002).
The Board concludes that the duties to assist and to notify
the veteran have been fulfilled, and there is no indication
that there are additional documents that have not been
obtained and would be pertinent to the present claim. The
appellant and his accredited representative have been
accorded the opportunity to present evidence and argument in
support of the claim.
The RO made all reasonable efforts to assist the appellant in
obtaining evidence necessary to substantiate his claim. No
reasonable possibility exists that any other assistance would
aid in substantiating the claim and the RO met its duty to
assist the appellant. 38 U.S.C.A. § 5103A (West Supp. 2002).
No further development is required in order to comply with
VA's duty to assist.
At the outset, the Board notes that the veteran has not been
shown to be capable of making medical conclusions, therefore,
his statements regarding medical diagnoses and causation are
not probative. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992).
The service medical records show no complaint, diagnosis or
treatment for hypertension. At separation in October 1966,
the veteran's blood pressure was recorded as 110/80. Private
medical records show treatment beginning in 1999, and
thereafter for hypertension. On VA treatment in October 2000
for PTSD, the veteran gave a history of hypertension since
1995.
The VA examined the veteran in October 2001. It was noted
that hypertension was diagnosed in 1995 per a history given
on a psychiatric examination. The examiner stated that the
veteran was taking Lotrel. The veteran's readings were as
follows: 126/88; 122/80; and 122/80. The heart sounds were
normal. The examiner diagnosed hypertension, controlled. It
was stated that per review of the veteran's medical record,
it was not likely that his hypertension was due to PTSD.
In November 2001, the RO found that service connection for
hypertension was not warranted on a direct or secondary
basis. In the statement of the case that was subsequently
issued, the RO noted that there was no objective medical
evidence showing that hypertension was either caused or
exacerbated by the veteran's service-connected PTSD.
As indicated above, the veteran's service medical records are
devoid of any indication that the veteran complained of or
was treated for any signs or symptoms associated with
hypertension. Moreover, there is no evidence showing that
hypertension was manifested to a degree of 10 percent or more
within one year from the date of termination of service. The
evidence is clear that the veteran did not have hypertension
in service or for many years thereafter, and thus service
connection as a direct result of service is not supported by
the record.
Upon consideration of all the evidence of record, the Board
finds that the veteran's hypertension was not caused or
aggravated by his PTSD. The October 2001 VA examiner
diagnosed hypertension, and opined that it was not related to
the veteran's service-connected PTSD. The veteran has not
submitted evidence of an etiological relationship between his
hypertension and his service-connected PTSD.
In light of the evidentiary record now before the Board, the
Board finds that the preponderance of the evidence is against
the claim of service connection for hypertension on a direct
basis or as secondary to PTSD. As a state of equipoise of
the positive evidence and the negative evidence does not
exist, the benefit-of-the-doubt doctrine outlined in 38
U.S.C.A. 5107(b) and Gilbert v. Derwinski, 1 Vet. App. 49
(1990), does not otherwise permit a favorable determination
in this case.
In a recent case, Allen v. Brown, 7 Vet. App. 439 (1995), The
United States Court of Appeals for Veterans Claims
(hereinafter, "the Court") held that the term "disability"
as used in 38 U.S.C.A. § 1110 (West 1991), refers to
impairment of earning capacity, and that such definition of
disability mandates that any additional impairment of earning
capacity resulting from an already service-connected
condition, regardless of whether or not the additional
impairment is itself a separate disease or injury caused by
the service-connected condition, shall be compensated.
Thus, pursuant to 38 U.S.C.A. § 1110 (West 1991) and 38
C.F.R. § 3.310(a) (2002), when aggravation of a veteran's
nonservice-connected condition is proximately due to or the
result of a service-connected condition, such veteran shall
be compensated for the degree of disability over and above
the degree of disability existing prior to the aggravation.
The record does not contain any medical evidence that the
veteran's hypertension is aggravated by his service-connected
disability. Thus, there is no basis for consideration of
service connection due to aggravation.
ORDER
Secondary service connection for hypertension is denied.
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.